Goldscheider v Royal Opera House Covent Garden Foundation

Employers exposed to excessive workplace noise must reduce the risk at source and, where the upper exposure action value is likely to be exceeded, use all reasonably practicable organisational and technical measures apart from personal hearing protection. The music and entertainment sector has no continuing exemption under the Control of Noise at Work Regulations 2005. Hearing protection zones and prescribed signage are mandatory, but continuous wearing of protectors during classical performance is qualified by reasonable practicability. Failure to reduce exposure may establish breach even where the precise form or timing of injury was unforeseeable. Where the injury is the occurrence of the risk inherent in the work, a prima facie causal connection arises, subject to the employer disproving causation. The appeal was dismissed.

The claimant, a viola player employed by the Royal Opera House, suffered hearing injury during a rehearsal of Wagner’s Ring cycle in September 2012. He brought a personal injury claim alleging breach of statutory duty and negligence.

The High Court tried preliminary issues of breach and causation and found for the claimant. The Royal Opera House appealed. Three industry bodies intervened in support of the appeal. The central issues were whether the employer had taken all reasonably practicable measures under the Control of Noise at Work Regulations 2005, whether its hearing-protection arrangements and risk assessment complied with the Regulations, and whether the breaches caused the claimant’s injury.

Regulations 6 and breach of duty

1. Appeal dismissed. McCombe and Bean LJJ, with Sir Brian Leveson P agreeing, upheld the finding of liability on narrower grounds than the trial judge. The Royal Opera House was in breach of Regulations 6(1) and 6(2) of the Control of Noise at Work Regulations 2005.
2. Regulation 6(1) required the employer to eliminate the noise risk at source or reduce it to as low a level as reasonably practicable. Once exposure was likely to exceed the upper exposure action value, Regulation 6(2) required an appropriate programme of organisational and technical measures, excluding personal hearing protectors. The duties were independent of Regulation 7, so reliance on hearing protection could not answer a failure under Regulation 6(2). The Regulations contained no continuing exemption for music and entertainment venues.
3. The employer bore the burden of showing that all reasonably practicable steps had been taken. Exposure during the relevant rehearsal reached approximately 91–92 dB(A), while later reconfiguration of the pit produced materially lower readings. Evidence about artistic standards, cost and physical constraints did not establish that further precautions were impracticable. Section 1 of the Compensation Act 2006 did not assist because the evidence did not show that further measures would require abandonment of the repertoire or an unacceptable compromise of artistic standards.
4. The precise sudden form of injury need not have been foreseeable. It was foreseeable that exposure substantially exceeding the upper exposure action value created a risk of hearing injury, and the distinction between long-term and traumatic injury was immaterial.

Hearing protection and risk assessment

1. Regulation 7(3)(a) and (b) required the orchestra pit to be designated and signed as a Hearing Protection Zone. Those requirements were categorical. The final duty to ensure that employees wore protectors was qualified by reasonable practicability. Continuous wearing during classical performance was not reasonably practicable because it could prevent musicians from hearing their instruments, other players and the conductor. The findings of breach under Regulation 7(3) and Regulation 10(1) were therefore set aside.
2. The court agreed that the risk assessment breached Regulation 5 because it did not specifically address the expected level, type and duration of exposure, including peak sound pressure, and was not reviewed when circumstances changed. It disagreed that the assessment had to impose more stringent requirements for wearing hearing protection.

Causation and appellate review

1. The claimant established the occurrence of the inherent risk—excessive noise exposure—and a prima facie causal connection with his injury. Causation remained a distinct issue, but the burden of disproving it lay on the employer. The employer failed to do so in light of the immediate onset of symptoms, the evidence of the claimant’s desk partner, the reduction in noise after reconfiguration and the medical evidence.
2. The diagnostic label was less important than the connection between the exposure, symptoms and breach. The trial judge was entitled to prefer acoustic shock over Meniere’s disease. An appellate court should not interfere with a trial judge’s assessment of rival medical evidence where it lacks an equivalent overview of the evidence: [2014] EWCA Civ 5.

• Court of Appeal (Civil Division): In [2019] EWCA Civ 711, the appeal was dismissed and liability was upheld on narrower grounds.
• High Court of Justice, Queen’s Bench Division: Nicola Davies J determined preliminary issues after an eight-day trial and found breach of duty and causation in judgment dated 28 March 2018.